Facts

Allied Surgical employed plaintiff as an outside marketing representative from April of 2003 until Dec. 15, 2003. During this time, plaintiff was an exempt employee. In December of 2003, Allied eliminated its marketing department, including plaintiff's sales position. Many employees were laid off. Others were transferred to other positions either within Allied or with one of its sister outpatient surgical centers.

Plaintiff was transferred to Irvine Surgical where she was given the title surgical consultant. According to defendant, this was not a promotion. With the exception that she spent more time working in-house, her duties remained the same as before. Thus, a misclassification of her status (exempt vs. non-exempt) occurred, which was not discovered until after suit was filed.

Plaintiff was terminated on May 26, 2004, due to poor performance. Tirado filed a lawsuit against Allied Surgical and Irvine Surgical, claiming violation of the California Employment Code.

PLAINTIFF'S CONTENTIONS:
By law, employees working in an exempt capacity are either professionals such as lawyers or doctors, or managers. As a result, the plaintiff claimed that she was a non-exempt employee who had been misclassified as an exempt employee. Further, the plaintiff claimed that as a salesperson, she was hired as non-exempt and although she had been promoted, she had retained most of her original duties, thus she continued to be a non-exempt employee.

DEFENDANT'S CONTENTIONS:
Although the defendants took the position that the plaintiff was an exempt employee, defendant Irvine Surgical conceded at trial that an error in classification had been made.

Settlement Discussions

The plaintiff demanded $100,000. Defendant Irvine made a C.C.P. 998 offer of $19,000. According to defense counsel, plaintiff at one point demanded over $150,000.

Specials in Evidence

$21,000 in lost overtime pay.

Result

$20,377.94. Interest, costs and mandatory attorneys' fees were also awarded. The entire award was as follows: judgment, $20,377.94; interest, $2,073.95; attorneys' fees, $37,257.50; costs, $1,752.50. The judge determined that the plaintiff was entitled to receive damages from defendant Irvine Surgical due to the misclassification. However, an Employment Code violation on the part of defendant Allied Surgical did not occur (prevailed on all causes of action asserted by plaintiff).